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JUDGES: Bazelon, Chief Judge, Leventhal, Circuit Judge, and
Adams, Circuit Judge, United States Court of Appeals for the Third
Circuit. Bazelon, Chief Judge, concurring in part and dissenting in
part.

LEVENTHAL, Circuit Judge:

Seven
of the so-called "D.C. Nine" bring this joint appeal from convictions
arising out of their unconsented entry into the Washington offices of
the Dow Chemical Company, and their destruction of
certain property therein. Appellants, along with two other defendants
who subsequently entered pleas of nolo contendere, were tried before
District Judge John H. Pratt and a jury on a three count indictment
alleging, as to each defendant, one count of second degree burglary,
and two counts of malicious destruction of property valued in excess of
$100. On February 11, 1970, after a six-day trial, the seven were each
convicted of two counts of malicious destruction. The jury acquitted on
the burglary charges but convicted on the lesser-included offense
of unlawful entry. . . .

Appellants
urge three grounds for reversal as follows: (1) The trial judge erred
in denying defendants' timely motions to dispense with counsel and
represent themselves. (2) The judge erroneously refused to instruct the
jury of its right to acquit appellants without regard
to the law and the evidence, and refused to permit appellants to argue
that issue to the jury. (3) The instructions actually given by the
court coerced the jury into delivering a verdict of guilty. On the
basis of defendants' first contention we reverse and remand for new
trial. To provide an appropriate mandate governing the new trial, we
consider the second and third contentions, and conclude that these
cannot be accepted.

I. The Record in District Court

The
undisputed evidence showed that on Saturday, March 22, 1969, appellants
broke into the locked fourth floor Dow offices at 1030 - 15th Street,
N.W., Washington, D.C., threw papers and documents about the office and
into the street below, vandalized office furniture and equipment, and
defaced the premises by spilling about a blood-like substance. The
prosecution proved its case through Dow employees who testified as to
the lack of permission and extent of damage, members of the news media
who had been summoned to the scene by the appellants and who witnessed
the destruction while recording it photographically, and police
officers who arrested appellants on the scene.....

On
Friday, February 6, after an opening statement by Mr. Bowman,
appellants O'Rourke and Malone made opening statements on their own
behalf, as the other defendants had done prior to the Government's
case. They directed their remarks, as had the others, to an attack on
the role of Dow Chemical Company and other unspecified corporations in
supporting American military efforts in the Vietnam War. When Sister
Malone referred to Vietnam, Judge Pratt interjected: "the war in
Vietnam is not an issue in this case." A disruption ensued. Events
happened too quickly for the court reporter to provide a complete
record. The court later inserted this description of what happened,
Supplement to Transcript, p. 595:

The record being unclear as to what transpired in the courtroom
shortly before the Court adjourned Friday, February 6, 1970, the
following is a recital of those events.

Defendant
JoAnn Malone, while making her opening statement, referred to the
Vietnam War. The Court ruled that "the War in Vietnam is not
an issue in this case." Defendant Arthur Melville rose to
object and was ordered by the Court to be seated. Defendant Michael
Slaski also objected and when he failed to obey the
Court's order to be seated, the Marshals were ordered to seat him.
While this was taking place, two spectators in the rear of the
courtroom then stood and shouted to the bench concerning the relevancy
of the War in the case on trial. Marshals moved to eject these two
persons. The first was removed without incident. While the second was
being ejected with some difficulty, a woman member of the DC-Nine
Defense Committee seated in the front row in back of the defendants
rose and ran to the back of the courtroom to impede the Marshals and
assist the two spectators being removed. When the Marshals resisted
her, she screamed at them. Defendant Michael Slaski then wrestled free
from the Marshals who were attempting to seat him, hurdled the rail and
engaged in an altercation with the Marshals at the rear of the
courtroom. During these events the jury was ushered from the courtroom.
The Court ordered the courtroom cleared and took a recess. It is
reported that the fighting involving defendant Slaski ceased after two
or three minutes and the Marshals began clearing the courtroom amid
shouts of "pigs" and obscenities. Loud shouting occurred
during the entire incident. A number of spectators
refused to leave the courtroom and had to be ejected forcibly. The
Court returned after the courtroom had been cleared and the press,
counsel and the defendants had been readmitted. The jury was recalled,
admonished to disregard what it had seen, and sent home. The Court then
adjourned until Monday, February 9, 1970.

When the trial resumed on Monday, February 9, defendant Slaski was
cited for contempt for his role in the disturbances and the judge
sternly admonished the spectators and remaining defendants against
further outbreaks. Appellants Slaski and Moloney did not make opening
statements. After appellant Malone finished her statement, the case for
the defense began. It consisted entirely of defendants' testimony.
Appellants Arthur Melville, O'Rourke, Malone and Begin testified.
During the testimony there were several further disruptions requiring a
brief recess at one point and ejection of a spectator from the
courtroom at another. The judge confined closing
argument to counsel. He instructed the jury on the three counts of each
indictment as well as on the lesser-included offense of unlawful entry
under the burglary count. He refused to instruct the
jury that it could disregard the law as he gave it to them, and refused
to instruct the jury that "moral compulsion" or "choice of the lesser
evil" constituted a legal defense....

III. The Issue of Jury Nullification

Our reference to the "intensity" factor underlying the pro se
right should not be understood as embracing the principle of
"nullification" proffered by appellants. They say that the jury has a
well-recognized prerogative to disregard the instructions of the court
even as to matters of law, and that they accordingly have the legal
right that the jury be informed of its power. We turn to this matter in
order to define the nature of the new trial permitted by our mandate.

There
has evolved in the Anglo-American system an undoubted jury
prerogative-in-fact, derived from its power to bring in a general
verdict of not guilty in a criminal case, that is not reversible by the
court. The power of the courts to punish jurors for corrupt or
incorrect verdicts, which persisted after the medieval system of
attaint by another jury became obsolete, was repudiated in 1670 when
Bushell's Case discharged the jurors who had acquitted William Penn of
unlawful assembly. Juries in civil cases became subject to the control
of ordering a new trial; no comparable control evolved for acquittals
in criminal cases.

The
pages of history shine on instances of the jury's exercise of its
prerogative to disregard uncontradicted evidence and instructions of
the judge. Most often commended are the 18th century acquittal of Peter
Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th
century acquittals in prosecutions under the fugitive slave law. The
values involved drop a notch when the liberty vindicated by the verdict
relates to the defendant's shooting of his wife's paramour, or purchase
during Prohibition of alcoholic beverages.

Even the notable
Dean Pound commented in 1910 on positive aspects of "such jury
lawlessness."(1) These observations of history and
philosophy are
underscored and illuminated, in terms of the current place of the jury
in the American system of justice, by the empirical information and
critical insights and analyses blended so
felicitously in H. Kalven and H. Zeisel, The American Jury. (2)

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1: "Jury lawlessness is the greatest corrective of law in its
actual administration. The will of the state at large imposed on a
reluctant community, the will of a majority imposed on a vigorous and
determined minority, find the same obstacle in the local jury that
formerly confronted kings and ministers." Pound comments that the law
as written, and invoked by prosecutors, "demands conviction of persons
whom local or even general opinion does not desire to punish," and adds
that "the law is often too mechanical at a point requiring nicety of
adjustment."

n2 The study of the American jury system, undertaken at the
University of Chicago Law School, is a composite analysis of 3576
criminal jury trials, with particular focus on the 1063 instances where
the judge reported that he disagreed with the jury verdict, and why.
Half these cases present an apparent difference between judge and jury
on "sentiments on the law."

The study
supports in depth the conclusion that the jury is likely to call on its
prerogative of lenity and equity, contrary to the judge's instruction,
when the case is one where it can empathize with the defendant, feeling
either that the jurors might well have been or come to be in the same
position, or that in the large the defendant's conduct is not so
contrary to general conduct standards as to be condemned as criminally
deviate conduct. From a study teeming with illustrations, the following
are cited as examples.

The authors broadly
discern that "in cases having a de minimis cast or a note of
contributory fault or provocation * * * the jury will exercise its de
facto powers to write these equities into the criminal law" and "an
impatience with the nicety of the law's boundaries hedging the
privilege of self-defense". (E.g., acquittal for retaliation
following assaults, or even harassment and provocation, without present
danger; for violence erupting after domestic strife, or unfaithfulness
of spouse; for fraud of a victim still the seller's friend; for
statutory rape of a girl unchaste; for sale of liquor to a minor who is
a member of the armed forces).

Perhaps
most relevant is ch. 19 on Unpopular Laws. Though the
authors discerned no law prompting a jury revolt comparable to the
historic acquittals on charges of violation of seditious libel or
fugitive slave laws, or even Prohibition, the data indicate that the
historic role of the jury as a bulwark against official tyranny is
"dimly evident in its contemporary role as a moderate corrective
against undue prosecutions for gambling, game and liquor violations
and, to some extent, drunken driving", the jury's traditional
hostility to sumptuary legislation being "keyed to its perception that
. . . widespread violation is tolerated" so that prosecution of a
particular defendant is contrary to the principle of evenhanded
justice. And so in some counties "people generally do not like the
game law". In counties where jurors play the numbers they
acquit broadly in gambling cases etc. When the jurors "feel
the same thing could happen to them," they will acquit even of
negligent manslaughter charges, as in running a red light, though there
are more convictions in cases involving extreme speed.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Reflective opinions upholding the necessity for the jury as a
protection against arbitrary action, such as prosecutorial abuse of
power, stress fundamental features like the jury "common sense
judgment" and assurance of "community participation in the
determination of guilt or innocence." Human frailty being what it
is, a prosecutor disposed by unworthy
motives could likely establish some basis in fact for bringing charges
against anyone he wants to book, but the jury system operates in fact,
so that the jury will not convict when they empathize
with the defendant, as when the offense is one they see themselves as
likely to commit, or consider generally acceptable or condonable under
the mores of the community.

The existence of an unreviewable and unreversible power in the jury,
to acquit in disregard of the instructions on the law given by the
trial judge, has for many years co-existed with legal practice and
precedent upholding instructions to the jury that they are required to
follow the instructions of the court on all matters of law. There were
different soundings in colonial days and the early days of our
Republic. We are aware of the number and variety of expressions at that
time from respected sources -- John Adams; Alexander Hamilton;
prominent judges -- that jurors had a duty to find a verdict according
to their own conscience, though in opposition to the direction of the
court; that their power signified a right; that they were judges both
of law and of fact in a criminal case, and not bound by the opinion of
the court.

The
rulings did not run all one way, but rather precipitated "a number of
classic exchanges on the freedom and obligations of
the criminal jury." This was, indeed, one of the points of clash
between the contending forces staking out the direction of the
government of the newly established Republic, a direction resolved in
political terms by reforming but sustaining the status of the courts,
without radical change. As the distrust of judges appointed and
removable by the king receded, there came increasing acceptance that
under a republic the protection of citizens lay not in recognizing the
right of each jury to make its own law, but in following democratic
processes for changing the law.

The
crucial legal ruling came in United States v. Battiste (C.C.D.Mass.
1835). Justice Story's strong opinion
supported the conception that the jury's function lay in accepting the
law given to it by the court and applying that law to the facts. This
considered ruling of an influential jurist won increasing acceptance in
the nation. The youthful passion for independence accommodated itself
to the reality that the former rebels were now in control of their own
destiny, that the practical needs of stability and sound growth
outweighed the abstraction of centrifugal philosophy, and that the
judges in the courts, were not the colonial appointees projecting
royalist patronage and influence but were themselves part and parcel of
the nation's intellectual mainstream, subject to the checks of the
common law tradition and professional opinion, and capable, in Roscoe
Pound's words, of providing "true judicial justice" standing in
contrast with the colonial experience.

The tide was turned by Battiste,
but there were cross-currents. At mid-century the country was still
influenced by the precepts of Jacksonian democracy, which spurred
demands for direct selection of judges by the people through elections,
and distrust of the judge-made common law which enhanced the movement
for codification reform. But by the end of the century, even the most
prominent state landmarks had been toppled; and the Supreme Court
settled the matter for the Federal courts in Sparf v. United States
(1895) after exhaustive
review in both majority and dissenting opinions. The jury's role was
respected as significant and wholesome, but it was not to be given
instructions that articulated a right to do whatever it willed. The old
rule survives today only as a singular relic.

The
breadth of the continuing prerogative of the jury,
however, perseveres, as appears from the rulings permitting
inconsistent verdicts. These reflect, in the words of Justice Holmes,
an acknowledgment that "the jury has the power to bring in a verdict in
the teeth of both law and facts," or as Judge Learned Hand said:
"We interpret the acquittal as no more than their assumption of a power
which they had no right to exercise, but to which they were disposed
through lenity."

Since the jury's prerogative of lenity, again in Learned Hand's words
introduces a "slack into the enforcement of law, tempering its
rigor by the mollifying influence of current ethical conventions," it
is only just, say appellants, that the jurors be so told. It is unjust
to withhold information on the jury power of
"nullification," since conscientious jurors may come, ironically, to
abide by their oath as jurors to render verdicts offensive to their
individual conscience, to defer to an assumption of necessity that is
contrary to reality.

This so-called right
of jury nullification is put forward in the name of liberty and
democracy, but its explicit avowal risks the ultimate logic of anarchy.
This is the concern voiced by Judge Sobeloff in United States v.
Moylan (4th Cir. 1969):

To encourage individuals to make their own
determinations as to which laws they will obey and which they will
permit themselves as a matter of conscience to
disobey is to invite chaos. No legal system could long survive if it
gave every individual the option of disregarding with impunity any law
which by his personal standard was judged morally untenable. Toleration
of such conduct would not be democratic, as appellants claim, but
inevitably anarchic.

The statement that avowal of the jury's prerogative runs
the risk of anarchy, represents, in all likelihood, the habit of
thought of philosophy and logic, rather than the prediction of the
social scientist. But if the statement contains an element of
hyperbole, the existence of risk and danger, of significant magnitude,
cannot be gainsaid. In contrast, the advocates of jury "nullification"
apparently assume that the articulation of the jury's power will not
extend its use or extent, or will not do so significantly or
obnoxiously. Can this assumption fairly be made? We know that a posted
limit of 60 m.p.h. produces factual speeds 10 or even 15 miles greater,
with an understanding all around that some "tolerance" is acceptable to
the authorities, assuming conditions warrant. But can it be supposed
that the speeds would stay substantially the same if the speed limit
were put: Drive as fast as you think appropriate, without the posted
limit as an anchor, a point of departure?

Our
jury system is a resultant of many vectors, some explicit, and some
rooted in tradition, continuity and general understanding without
express formulation. A constitution may be meaningful though it is
unwritten, as the British have proved for 900 years.

The
jury system has worked out reasonably well overall,
providing "play in the joints" that imparts flexibility and avoid undue
rigidity. An equilibrium has evolved -- an often marvelous balance --
with the jury acting as a "safety valve" for exceptional cases, without
being a wildcat or runaway institution. There is reason to believe that
the simultaneous achievement of modest jury equity and avoidance of
intolerable caprice depends on formal instructions that do not
expressly delineate a jury charter to carve out its own rules of
law....

The
way the jury operates may be radically altered if there is alteration
in the way it is told to operate. The jury knows well enough that its
prerogative is not limited to the choices articulated in the formal
instructions of the court. The jury gets its understanding as to
the arrangements in the legal system from more than one voice. There is
the formal communication from the judge. There is
the informal communication from the total culture -- literature (novel,
drama, film, and television); current comment (newspapers, magazines
and television); conversation; and, of course, history and tradition.
The totality of input generally convey adequately enough the idea of
prerogative, of freedom in an occasional case to depart from what the
judge says. Even indicators that would on their face seem too weak to
notice -- like the fact that the judge tells the jury it must acquit
(in case of reasonable doubt) but never tells the jury in so many words
that it must convict -- are a meaningful part of the jury's total
input. Law is a system, and it is also a language, with secondary
meanings that may be unrecorded yet are part of its life.

When
the legal system relegates the information of the jury's prerogative to
an essentially informal input, it is not being duplicitous, chargeable
with chicane and intent to deceive. The limitation to
informal input is, rather a governor to avoid excess: the prerogative
is reserved for the exceptional case, and the judge's instruction is
retained as a generally effective constraint. We "recognize a
constraint as obligatory upon us when we require not merely reason to
defend our rule departures, but damn good reason." The
practicalities of men, machinery and rules point up the danger of
articulating discretion to depart from a rule, that the breach will be
more often and casually invoked. We cannot gainsay that occasionally
jurors uninstructed as to the prerogative may feel themselves compelled
to the point of rigidity. The danger of the excess rigidity that
may now occasionally exist is not as great as the danger of removing
the boundaries of constraint provided by the announced rules.

We
should also note the inter-relation of the unanimity requirement for
petit juries, which was applicable to this trial, and is still the
general rule though no longer constitutionally required for state
courts. This is an additional reason -- a material consideration,
though neither a necessary nor sufficient condition -- to brake the
wheels of those who would tell the petit jurors they are to determine
the rules of law, either directly or by telling
them they are free to disregard the judge's statement of the rules. The
democratic principle would not be furthered, as proponents of jury
nullification claim, it would be disserved by investing in a jury that
must be unanimous the function not merely of determining facts, hard
enough for like-minded resolution, but of determining the rules of law.

Rules
of law or justice involve choice of values and
ordering of objectives for which unanimity is unlikely in any society,
or group representing the society, especially a society as diverse in
cultures and interests as ours. To seek unity out of diversity, under
the national motto, there must be a procedure for decision by vote of a
majority or prescribed plurality -- in accordance with democratic
philosophy. To assign the role of mini-legislature to the various petit
juries, who must hang if not unanimous, exposes criminal law and
administration to paralysis, and to a deadlock that betrays rather than
furthers the assumptions of viable democracy.

Moreover,
to compel a juror involuntarily assigned to jury duty to assume the
burdens of mini-legislator or judge, as is implicit in the doctrine of
nullification, is to put untoward strains on the jury system. It is one
thing for a juror to know that the law condemns, but he has a factual
power of lenity. To tell him expressly of a nullification prerogative,
however, is to inform him, in effect, that it is he who fashions the
rule that condemns. That is an overwhelming responsibility, an extreme
burden for the jurors' psyche. And it is not
inappropriate to add that a juror called upon for an
involuntary public service is entitled to the protection, when he takes
action that he knows is right, but also knows is unpopular, either in
the community at large or in his own particular grouping, that he can
fairly put it to friends and neighbors that he was merely following the
instructions of the court.

In the last
analysis, our rejection of the request for jury nullification doctrine
is a recognition that there are times when logic is not the only or
even best guide to sound conduct of government. For machines, one can
indulge the person who likes to tinker in pursuit of fine tuning. When
men and judicial machinery are involved, one must attend to the many
and complex mechanisms and reasons that lead men to change their
conduct -- when they know they are being studied; when they are told of
the consequences of their conduct; and when conduct exercised with
restraint as an unwritten exception is expressly presented as a
legitimate option.

What makes for health
as an occasional medicine would be disastrous as a daily diet. The fact
that there is widespread existence of the jury's prerogative, and
approval of its existence as a "necessary counter to
case-hardened judges and arbitrary prosecutors," does not establish
as an imperative that the jury must be informed by the judge of that
power. On the contrary, it is pragmatically useful to structure
instructions in such wise that the jury must feel strongly about the
values involved in the case, so strongly that it must itself identify
the case as establishing a call of high conscience, and must
independently initiate and undertake an act in
contravention of the established instructions. This requirement of
independent jury conception confines the happening of the lawless jury
to the occasional instance that does not violate, and viewed as an
exception may even enhance, the over-all normative effect of the rule
of law. An explicit instruction to a jury conveys an implied approval
that runs the risk of degrading the legal structure requisite for true
freedom, for an ordered liberty that protects against anarchy as well
as tyranny....

BAZELON,
Chief Judge, concurring in part and dissenting in part:

My
disagreement with the Court concerns the issue of jury nullification.
As the Court's opinion clearly acknowledges, there can be no doubt that
the jury has "an unreviewable and unreversible power * * * to acquit in
disregard of the instructions on the law given by the trial judge * *
*." More important, the Court apparently
concedes -- although in somewhat grudging terms --
that the power of nullification is a "necessary counter to
case-hardened judges and arbitrary prosecutors," and that exercise
of the power may, in at least some instances, "enhance, the over-all
normative effect of the rule of law." We could not
withhold that concession without scoffing at the rationale that
underlies the right to jury trial in criminal cases, and belittling
some of the most legendary episodes in our political and
jurisprudential history.

The
sticking point, however, is whether or not the jury should be told of
its power to nullify the law in a particular case. Here, the trial
judge not only denied a requested instruction on nullification, but
also barred defense counsel from raising the issue in argument before
the jury. The majority affirms that ruling. I see no justification for,
and considerable harm in, this deliberate lack of candor.

At
trial, the defendants made no effort to deny that they had committed
the acts charged. Their defense was designed to persuade the jury that
it would be unconscionable to convict them of violating a statute whose
general validity and applicability they did not challenge. An
instruction on nullification -- or at least some argument to the jury
on that issue -- was, therefore, the linchpin of the defense.

At the outset it is
important to recognize that the trial judge was not simply neutral on
the question of nullification. His instruction, set out in part in the
margin, emphatically denied the existence of a "legal defense" based
on "sincere religious motives" or a belief that action was justified by
"some higher law." That charge was not directly
inconsistent with the theory of jury nullification. Nullification is
not a "defense" recognized by law, but rather a mechanism that permits
a jury, as community conscience, to disregard the strict
requirements of law where it finds that those requirements cannot
justly be applied in a particular case. Yet the impact of the judge's
instruction, whatever his intention, was almost surely to discourage
the jury from measuring the defendants' action against community
concepts of blameworthiness.

Thus,
we are left with a doctrine that may "enhance the over-all normative
effect of the rule of law," but, at the same time, one that must not
only be concealed from the jury, but also effectively condemned in the
jury's presence. Plainly, the justification for this sleight-of-hand
lies in a fear that an occasionally noble doctrine will, if
acknowledged, often be put to ignoble and abusive purposes -- or, to
borrow the Court's phrase, will "run the risk of
anarchy." A breakdown of the legal
order is not a result I would knowingly encourage or
enjoy. But the question cannot be resolved, at least at this stage of
the argument, by asking if we are for or against anarchy, or if we are
willing to tolerate a little less law and order so that we can permit a
little more jury nullification. No matter how horrible the effect
feared by the Court, the validity of its reasoning depends on the
existence of a demonstrable connection between the alleged cause (a
jury nullification instruction or argument to the jury on that issue)
and that effect. I am unable to see a connection.

To
be sure, there are abusive purposes, discussed below, to which the
doctrine might be put. The Court assumes that these abuses are most
likely to occur if the doctrine is formally described to the jury by
argument or instruction. That assumption, it should be clear, does not
rest on any proposition of logic. It is nothing more or less than a
prediction of how jurors will react to the judge's instruction or
argument by counsel. And since we have no empirical data to measure the
validity of the prediction, we must rely on our own rough judgments of
its plausibility.

The Court reasons that a
jury uninformed of its power to nullify will invoke
that power only where it "feels strongly about the values involved in
the case, so strongly that it [will] itself identify the case as
establishing a call of high conscience * * *." In other words,
the spontaneous and unsolicited act of
nullification is thought less likely, on the whole, to reflect bias and
a perverse sense of values than the act of nullification carried out by
a jury carefully instructed on its power and responsibility.

It
seems substantially more plausible to me to assume that the very
opposite is true. The juror motivated by prejudice seems to me more
likely to make spontaneous use of the power to nullify, and more likely
to disregard the judge's exposition of the normally controlling legal
standards. The conscientious juror, who could make a careful effort to
consider the blameworthiness of the defendant's action in light of
prevailing community values, is the one most likely to obey the judge's
admonition that the jury enforce strict principles of law.

Moreover,
if it were true that nullification which arises out of ignorance is in
some sense more worthy than nullification which arises out of
knowledge, the Court would have to go much further.
For under the Court's assumption, the harm does not arise because a
jury is told of its power to disregard the law, but because it knows
of its power. Logically construed, the Court's opinion would seem to
require the disqualification at voir dire of any prospective juror who
admitted to knowledge of the doctrine. By excluding jurors with
knowledge of the doctrine the Court could insure that its invocation
would be spontaneous. And yet, far from requiring the exclusion of
jurors who are aware of the power, the Court takes comfort in the fact
that informal communication to the jury "generally conveys adequately
enough the idea of prerogative, of freedom in an occasional case to
depart from what the judge says." Majority opinion at 1135. One cannot,
it seems to me, have the argument both ways. If, as the Court appears
to concede, awareness is preferable to ignorance, then I simply do not
understand the justification for relying on a haphazard process of
informal communication whose effectiveness is likely to depend, to a
large extent, on whether or not any of the jurors are so well-educated
and astute that they are able to receive the message.
If the jury should know of its power to disregard the law, then the
power should be explicitly described by instruction of the court or
argument of counsel.

My own view rests on
the premise that nullification can and should serve an important
function in the criminal process. I do not see it as a doctrine that
exists only because we lack the power to punish [*1142]
jurors who refuse to enforce the law or to re-prosecute a defendant
whose acquittal cannot be justified in the strict terms of law. The
doctrine permits the jury to bring to bear on the criminal process a
sense of fairness and particularized justice. The drafters of legal
rules cannot anticipate and take account of every case where a
defendant's conduct is "unlawful" but not blameworthy, any more than
they can draw a bold line to mark the boundary between an accident and
negligence. It is the jury -- as spokesman for the community's sense of
values -- that must explore that subtle and elusive boundary.

Admittedly,
the concept of blameworthiness does not often receive explicit
recognition in the criminal process. But it comes very close to
breaking through the surface in cases where the responsibility
defense is raised, and it is implicit in every case where
criminal sanctions are
imposed. More than twenty-five years ago this Court recognized that
"our collective conscience does not allow punishment where it cannot
impose blame."

The
very essence of the jury's function is its role as spokesman for the
community conscience in determining whether or not blame can be
imposed.

I
do not see any reason to assume that jurors will make rampantly abusive
use of their power. Trust in the jury is, after all, one of the
cornerstones of our entire criminal jurisprudence, and if that trust is
without foundation we must re-examine a great deal more than just the
nullification doctrine. Nevertheless, some abuse can be anticipated. If
a jury refuses to
apply strictly the controlling principles of law, it may -- in conflict
with values shared by the larger community -- convict a defendant
because of prejudice against him, or acquit a defendant because of
sympathy for him and prejudice against his victim. Our fear of unjust
conviction is plainly understandable. But it is hard for me to see how
a nullification instruction could enhance the likelihood of that
result. The instruction would speak in terms of acquittal, not
conviction, and it would provide no comfort to a juror determined to
convict a defendant in defiance of the law or the facts of the case.
Indeed, unless the jurors ignored the nullification instruction
they could not convict on the grounds of prejudice alone. Does the
judge's recitation of the instruction increase the likelihood that the
jury will ignore the limitation that lies at its heart? I hardly think
so.

As for the problem of unjust
acquittal, it is important to recognize the strong internal check that
constrains the jury's willingness to acquit. Where defendants seem
dangerous, juries are unlikely to exercise their nullification power,
whether or not an explicit instruction is offered. Of
course, that check will not prevent the acquittal of a defendant who
may be blameworthy and dangerous except in the jaundiced eyes of a jury
motivated by a perverse and sectarian sense of values. But whether a
nullification instruction would make such acquittals more common is
problematical, if not entirely inconceivable. In any case, the real
problem in this situation is not the nullification doctrine, but the
values and prejudice that prompt the acquittal. And the solution is
not to condemn the nullification power, but to spotlight the prejudice
and parochial values that underlie the verdict in the hope that public
outcry will force a re-examination of those values, and deter their
implementation in subsequent cases. Surely nothing is gained by the
pretense that the jurors lack the power to nullify, since that pretense
deprives them of the opportunity to hear the very instruction that
might compel them to confront their responsibility.

One
often-cited abuse of the nullification power is the acquittal by
bigoted juries of whites who commit crimes (lynching, for example)
against blacks. That repellent practice cannot be directly arrested
without jeopardizing important constitutional protections -- the double
jeopardy bar and the jury's power of nullification. But the revulsion
and sense of shame fostered by that practice fueled the civil rights
movement, which in turn made possible the enactment of major civil
rights legislation. That same movement spurred on the revitalization of
the equal protection clause and, in particular, the recognition of the
right to be tried before a jury selected without bias. The lessons
we learned from these abuses helped to create a climate in which such
abuses could not so easily thrive.

Moreover,
it is not only the abuses of nullification that can inform our
understanding of the community's values and standards of
blameworthiness. The noble uses of the power -- the uses that "enhance
the over-all normative effect of the rule of law" -- also provide an
important input to our evaluation of the substantive standards of the
criminal law. The reluctance of juries to hold defendants responsible
for unmistakable violations of the prohibition laws told us much about
the morality of those laws and about the "criminality" of the conduct
they proscribed. And the same can be said of the acquittals returned
under the fugitive slave law as well as contemporary gaming and liquor
laws. A doctrine that can
provide us with such critical insights should not be driven
underground.

On
remand the trial judge should grant defendants' request for a
nullification instruction. At the very least, I would require the
trial court to permit defendants to argue the question before the jury.
But it is not at all clear that defendants would prevail even with the
aid of an instruction or argument. After all, this case is
significantly different from the classic, exalted cases where juries
historically invoked the power to nullify. Here, the defendants have no
quarrel with the general validity of the law under which they have been
charged. They did not simply refuse to obey a government edict that
they considered illegal, and whose illegality they expected to
demonstrate in a judicial proceeding. Rather, they attempted to protest
government action by interfering with others -- specifically, the Dow
Chemical Company. This is a distinction which could and should be
explored in argument before the jury. If revulsion against the war in
Southeast Asia has reached a point where a jury would be unwilling to
convict a defendant for commission of the acts alleged here, we would
be far better advised to ponder the implications of that result than to
spend our time devising stratagems which let us
pretend that the power of nullification does not even exist.